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Presumption of Death From Absence

The law becomes confused when an individual disappears for a long time and no other person knows where the absentee is, dead or alive.

Until death has been confirmed, the law continues to deal with the absentee's property in absentia, governed only by any delegation of powers the absentee may have signed before disappearing, such as a power of attorney.

It is a disagreeable state of affairs that the law cannot tolerate for long as without a directing mind, property, assets and things are rudderless and as such, start bumping into other ships nearby, such as the legal rights of a husband or wife, marital status, or the rights of property held jointly with the absentee, or the absentee's estate or an estate in which he might have an interest were his status ascertained in law

And yet, before a more modern evolution of the common law, especially as with the advent of problem-solving by way of statute as opposed to the reliance on the common sense of judges (also known as common law), the common law entertained a legal presumption of life.

In the 1800s, a line of cases in England suggested that a seven year absence might give rise to a presumption of death. These cases initially appear to have been intended to be specific to the facts at hand but as all sparks of legal precepts in the common law, the suggestion of a presumption of death after 7-year absence, was both attractive and novel.

But whether it ever firmly rooted within the common law has been a controversy ever since.

Halsbury's Laws of England proposes that "where no statute applies, the mere fact of absence for more than seven years does not raise a presumption that death has occurred".

In Sheehy v Winch Estate:

"The authorities touching presumptions referable to the continuance of life and presumption of death, are somewhat difficult to reconcile, but I am of opinion that the following principles of law are well established.

There is no presumption of death before the expiration of seven years from the time the missing person was last heard of or seen.

That subject to certain exceptions as to the likelihood of a missing person keeping his identity unrevealed, there is a presumption of death after a lapse of seven years.

That there is no presumption within such seven year period respecting the time the death took place.

That if any one claims, or bases a right upon death having taken place within a specific time within the seven years, the onus of proof lies on such person.

"In a word, ... the onus is on the party who attempts to change the status quo; the one on whom the onus rests must prove that the previously existing condition has changed, subject always to the presumption that arises after an absence, under certain conditions, for a period of not less than seven years."

But, conversely, Canadian author Richard Young, in Estate Practice refers to the "seven year rule".

"If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right, to the establishment of which that fact is essential."

An early foray into presumption of death statute was the Cestui Que Vie Act of 1666 which allowed a litigant to invoke a presumption of death in regards to life estates where a beneficiary:

"... shall remaine beyond the seas or elsewhere absent themselves in this Realme by the space of seaven yeares together and noe sufficient and evident proofe be made of the lives of such person or persons ... in every such case the person or persons upon whose life or lives such estate depended shall be accounted as naturally dead, and in every action ... the judges before whom such action shall be brought shall direct the jury to give their verdict as if the person soe remaining beyond the seas or otherwise absenting himselfe were dead."

While legal researchers argue over whether or not such a presumption ever properly grounded itself in the common law, it is mostly a moot point as common law jurisdictions have continued to rely on statutes to either provide a presumption of death after an absence of a set period of time, generally seven years, or earlier where evidence exists to demonstrate that a person is dead, based on a balance of probability.

Death is just another fact that needs to be proven and like any alleged fact, where relevant, persuasive and not contradicted, that evidence will persuade a Court.

For example, for those persons known to have been on the Titanic and who were never heard from or seen again, or their remains found, there would have been no need to wait seven years. The same applies for airline disasters, lost at sea or other similar incidents which because of the circumstances, would lead inextricably to a presumption of death.

In Re Honeyman:

"John Robertson Honeyman, a commercial traveller, had left Vancouver on a regular business trip to Prince Rupert on April 8, 1929. On April 19, 1929, (his wife) received a wire from him from Prince Rupert in which he stated he was returning to Vancouver as he was not feeling in good health; that she had been advised that when her husband boarded the SS. "Princess Royal" at Prince Rupert on April 19, 1929, he was in poor health; that he occupied cabin No. 18, which was an outside cabin, and that during the time he was on the said steamship he refused to eat any but one meal; that about 2 a.m. on April 22, 1929, her husband complained to James Reid, night saloonman on said steamship, that a man and woman were shining a light on him and he was not going to stand for it and that about 5 a.m. on the same date he came to the saloon and appeared to be very sick and stated to said Reid that he was unable to sleep ...; that her husband returned to his stateroom shortly after and was never again seen; that his stateroom was entered at Vancouver and the door was found to be locked with the key in the keyhole on the inside and a note: "Good Bye. God Bless You All For I know not what I do. JOHN"

Seven months later, or in November 21, 1929, the wife's petitioned the Court for a declaration of death and it was granted the next day, the Court also noted that "the window of the cabin to which Honeyman had been assigned was large enough for a full-grown man to crawl through".

In regards to the modern mechanics of dealing with absentees, Ontario's Absentees Act, the essentials of which are:

"An absentee within the meaning of this Act means a person who, having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts is unknown and as to whom there is no knowledge as to whether he or she is alive or dead.

"The Superior Court of Justice may by order declare a person to be an absentee if it is shown that due and satisfactory inquiry has been made, or may direct such further inquiry to be made and proceedings to be taken as the court considers expedient before making any order.

"The application for the order may be made by ... any ... person.

"The court may make an order for the custody, due care and management of the property of an absentee, and a committee may be appointed for that purpose."

British Columbia has two relevant statutes, the Estates of Missing Persons Act and this from the Survivorship and Presumption of Death Act:

"If, on the application of an interested person under the Rules of Court, the court is satisfied that a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named, the applicant has no reason to believe that the person is living, and reasonable grounds exist for supposing that the person is dead, the court may make an order declaring that the person is presumed to be dead for all purposes...."

Alberta has couched the right to deal with an absentee's assets within their Public Trustee Act, who is also empowered to administer the property of a missing person.

Because it is based on contract, insurance law presents unique challenges, generally requiring that life insurance beneficiaries satisfy the insurer of death. But here, too, statutes have been introduced. Ontario's Insurance Act, for example provides that:

"¶209. Where a claimant alleges that the person whose life is insured should be presumed to be dead by reason of his or her not having been heard of for seven years and there is no other question in issue (except a question under section 208), the insurer or the claimant may, before or after action is brought and upon at least thirty days notice, apply to the court for a declaration as to presumption of the death and the court may make the declaration."

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.